Citation Nr: 0737300
Decision Date: 11/28/07 Archive Date: 12/06/07
DOCKET NO. 05-23 567 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased disability rating for a
service-connected right knee condition, currently
evaluated as 10 percent disabling.
2. Entitlement to an increased (compensable) disability
rating for service-connected left ear hearing loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Sigur, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from December 27, 1978 to January 31, 1987; from October 1,
1990 to July 9, 1991; and from March 15, 2003 to May 20,
2004, when he was honorably discharged.
Procedural history
In April 1989, the Department of Veterans Affairs (VA)
Regional Office (RO) in Detroit, Michigan granted service
connection for a right knee condition and left ear hearing
loss and assigned a noncompensable (zero percent) disability
rating for each.
The disability rating assigned for the right knee condition
was increased to
10 percent in an August 1999 RO decision. The disability
rating for the service-connected left ear hearing loss was
continued at zero percent.
The veteran filed an Application for Compensation (VA Form
21-526) in May 2004, which the VA construed to be a claim for
increased disability ratings.
A September 2004 RO decision continued the veteran's 10
percent disability rating for the service-connected right
knee condition and zero percent for the service-connected
left ear hearing loss. The veteran disagreed, and the RO
confirmed its findings in a June 2005 statement of the case
(SOC). The veteran's appeal issue was perfected with the
timely submission of a substantive appeal (VA Form 9) in July
2005.
FINDINGS OF FACT
1. The competent medical and other evidence of record
indicates that the veteran's right knee condition is
currently manifested by a range of motion between 0 and
130 degrees, normal alignment, no instability, minimal
effusion in the knee joint, difficulty squatting due to
pain and a mild degree of degenerative change revealed
upon X-ray.
2. The competent medical evidence of record indicates that
the veteran's left ear hearing loss is currently
manifested by 100 percent speech recognition and an
average decibel loss of 30.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 10
percent for the service-connected right knee condition are
not met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261
(2006).
2. The criteria for a compensable disability rating for the
service-connected left ear hearing loss are not met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic
Code 6100 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks increased disability ratings for his
service-connected right knee and left ear disabilities.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision on the issues on appeal.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2006).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issue on appeal.
The Board observes that the veteran was advised as to the
evidentiary requirements of his increased rating claim in a
July 2004 VCAA notice letter. That letter specifically
indicated that "to establish entitlement to an increased
evaluation for your service-connected disability, the
evidence must show that your service-connected condition has
gotten worse."
Crucially, the veteran was informed of VA's duty to assist
him in the development of his claim and advised of the
provisions relating to the VCAA in the above-referenced July
2004 letter. The veteran was advised in those letters that
VA is responsible for obtaining relevant records from any
Federal agency, including service records, records from the
Social Security Administration and VA treatment records.
With respect to private treatment records, the letters
indicated VA would make reasonable efforts to obtain relevant
records not held by a Federal agency.
The July 2004 VCAA letter further emphasized: "If the
evidence is not in your possession, you must give us enough
information about the evidence so that we can request it from
the person or agency that has it. If the holder of the
evidence declines to give it to us, asks for a fee to provide
it, or VA otherwise cannot get the evidence, we will notify
you. It is your responsibility to make sure that we receive
all requested records that are not in the possession of a
Federal department or agency" [Emphasis as in the original].
The veteran was also advised that VA would provide a medical
examination if such was necessary to decide his claim. [VA
examinations were in fact completed during the course of this
appeal, most recently in August 2004.]
Finally, the Board notes that the VCAA letter requested of
the veteran: "If there is any other evidence or information
that you think will support your claim, please let us know.
If you have any evidence in your possession that pertains to
your claim, please send it to us." This request complies
with the "give us everything you've got" requirements of 38
C.F.R. § 3.159(b) in that it informed the veteran that he
could submit or identify evidence other than what was
specifically requested by the RO.
Finally, there has been a significant recent Court decision
concerning the VCAA.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
observed that a claim of entitlement to service connection
consists of five elements: (1) veteran status; (2) existence
of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date. Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim. Therefore, upon receipt of an
application for a service connection claim, section 5103(a)
and section 3.159(b) require VA to review the information and
the evidence presented with the claim and to provide the
claimant with notice of what information and evidence not
previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
The Court's holding in Dingess does not exclusively apply to
service connection claims. Indeed, with respect to claims
for increased disability ratings, such as the instant case,
Dingess dictates that the veteran is to be provided notice
that an effective date for the award of benefits will be
assigned if an increased disability rating is awarded. [With
respect to the veteran's increased rating claim, element
(1) is not in dispute, and elements (2) and (3) are
irrelevant, as service connection has already been granted
for the claim.] With respect to elements (4) and (5), the
veteran was provided notice as to degree of disability and
effective date in the March 2006 notice letter.
The March 2006 notice letter detailed the evidence considered
in determining a disability rating, including "nature and
symptoms of the condition; severity and duration of the
symptoms; and impact of the condition and symptoms on
employment."
With respect to effective date, the March 2006 notice letter
instructed the veteran that two factors were relevant in
determining effective dates of an increased rating claim:
when the claim was received; and when the evidence "shows a
level of disability that supports a certain rating under the
rating schedule."
Accordingly, the veteran has received proper notice as to
disability rating and effective date pursuant to the Court's
Dingess determination via the March 2006 letter.
In short, the record indicates that the veteran received
appropriate notice pursuant to the VCAA.
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. See 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2006).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.
In particular, the RO has obtained reports of outpatient
treatment records of the veteran. Additionally, the veteran
was provided with VA examinations February 2001 and in August
2004. The reports of the examination reflect that the
examiners recorded the veteran's past medical history, noted
his current complaints, and rendered appropriate diagnoses
and opinions.
Accordingly, the Board finds that under the circumstances of
this case, VA has satisfied the notification and duty to
assist provisions of the law and that no further actions
pursuant to the VCAA need be undertaken on the veteran's
behalf.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2006). The veteran has been accorded the opportunity to
present evidence and argument in support of his claim. He
declined a Board hearing.
The Board will therefore proceed to a decision.
1. Right knee disability
Relevant law and regulations
Disability ratings - in general
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. See 38 U.S.C.A. § 1155 (West
2002);
38 C.F.R. §§ 3.321(a), 4.1 (2006). Separate diagnostic codes
identify the various disabilities. See 38 C.F.R. Part 4.
The Court has held that staged ratings are appropriate for an
increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibited symptoms that would warrant different ratings. See
Hart v. Mansfield, No. 05-2424 U.S. Vet.App. Nov. 19, 2007.
Rating musculoskeletal disabilities
The Court has held that evaluation of a service-connected
disability involving a joint rated on limitation of motion
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40 (2005) and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45 (2006). See, in general,
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portray the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled.
38 C.F.R. § 4.40 (2006).
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
The intent of the schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2006).
Schedular criteria
Arthritis due to trauma, substantiated by X-ray findings,
will be rated as degenerative arthritis. 38 C.F.R. § 4.71a,
Diagnostic Code 5010 (2006).
Under Diagnostic Code 5003 [degenerative arthritis],
arthritis of a major joint will be rated under the criteria
for limitation of motion of the affected joint. See 38
C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2005). For the
purpose of rating disabilities due to arthritis, the knee is
considered a major joint. See 38 C.F.R.
§ 4.45 (2006).
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. Where, however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003
(2006).
Under Diagnostic Code 5260, limitation of flexion of the leg
provides a non-compensable rating if flexion is limited to 60
degrees, a 10 percent rating where flexion is limited to 45
degrees, a 20 percent rating where flexion is limited to
30 degrees, and a maximum 30 percent rating if flexion is
limited to 15 degrees.
Under Diagnostic Code 5261, limitation of extension of the
leg provides a non-compensable rating if extension is limited
to five degrees, a 10 percent rating if limited to 10
degrees, a 20 percent rating if limited to 15 degrees, a 30
percent rating if limited to 20 degrees, a 40 percent rating
if limited to 30 degrees, and a 50 percent rating if limited
to 45 degrees.
Normal range of motion for the knee is defined as follows:
flexion, zero degrees to 140 degrees; and extension, 140
degrees to zero degrees. See 38 C.F.R. § 4.71, Plate II
(2006).
Analysis
The veteran contends that his right knee disability warrants
an increased disability rating.
Assignment of diagnostic code
The assignment of a particular diagnostic code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).
One diagnostic code may be more appropriate than another
based on such factors as an individual's relevant medical
history, the diagnosis and demonstrated symptomatology. Any
change in a diagnostic code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992). In this case, the Board has considered
whether another rating code is "more appropriate" than the
one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411,
414 (1995).
The Board notes that the RO initially rated the veteran under
Diagnostic Code 5257 but currently rates him under Diagnostic
Coe 5010 [arthritis, due to trauma]. This is congruent with
both the veteran's medical history and his current diagnosis.
The veteran reported twisting his knee while on active duty.
He was diagnosed with osteoarthritis in a July 1998 report by
M.B.,M.D. The recent medical evidence indicates that right
knee arthritis continues to exist. An August 2004 VA
examination X-ray of the veteran's right knee indicated that
"mild degenerative changes" were found. See also the
report of an August 2006 VA radiology study showing the
presence of degenerative joint disease of the right knee.
Diagnostic Code 5257, [other impairment of the knee] is
essentially as "catch all" provision. Rating under
Diagnostic Code 5257 requires evidence of recurrent
subluxation or lateral instability. In the medical reports,
there is no finding of instability or subluxation (partial
dislocation) of the right knee. For example, the report of a
February 2001 VA examination indicated that the knee is
stable.
Thus, there is of record ample evidence to support the
assignment of Diagnostic Code 5010, traumatic arthritis and
virtually none to support he assignment of Diagnostic Code
5257. The Court has referred to "the canon of
interpretation that the more specific trumps the general."
See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more
specific statute will be given precedence over a more general
one . . . . ") [quoting Busic v. United States, 446 U.S.
398, 406 (1980)]; see also Kowalski v. Nicholson, 19 Vet.
App. 171, 176-7 (2005). The Board will therefore apply the
more specific diagnostic code.
Therefore, the Board finds that the application of Diagnostic
Code 5010 (and thus also Diagnostic Codes 5003, 5260 and
5261) is most appropriate.
Schedular rating
As was discussed above, arthritis of the knee is rated based
on limitation of motion. If compensable limitation is not
demonstrated, a 10 percent rating is assigned based on x-ray
evidence of arthritis.
The August 2004 orthopedic examination noted that the range
of motion for the right knee was up to 130 degrees. [As
noted above, normal knee extension is
140 degrees and normal knee flexion is zero degrees.]
Diagnostic Code 5260 contemplates a noncompensable evaluation
where there is limitation of knee flexion to 60 degrees,
which is far exceeded by the 130 degrees reported during the
August 2004 examination.
Diagnostic Code 5261 contemplates a noncompensable evaluation
with a limitation of knee extension to 5 degrees. A
compensable disability evaluation obviously cannot be
assigned under Diagnostic Code 5261 for zero degrees, or
normal, extension.
Based on these findings, a compensable rating may not be
assigned based on limitation of motion of the right knee.
The x-ray findings of degenerative arthritis allow for the
assignment of a 10 percent disability evaluation under
Diagnostic Code 5003. That is the rating which has been
assigned by the RO.
DeLuca considerations
The Board has taken into consideration the provisions of 38
C.F.R. §§ 4.40, 4.45 and 4.59.
The August 2004 VA examination noted the veteran experiences
"minor limitation of motion" in his right knee. As
discussed above, the small amount of limited motion which has
been identified on medical examination does not warrant a
compensable rating. Moreover, there is no evidence that the
veteran experiences weakness, fatigability, or lack of
coordination because of his right knee disability.
The Board observes that the veteran does not wear a knee
brace, nor has one been prescribed for his use, and the
record evidence does not show that he has been prescribed to
participate in physical therapy to strengthen the muscles
surrounding the right knee joint.
For these reasons, the Board finds that additional
disability, over and above the
10 percent rating which has already been assigned, is not
warranted.
Hart considerations
In Hart v. Mansfield, No. 05-2424 U.S. Vet.App. Nov. 19,
2007, the Court was presented with the question of whether it
is appropriate to apply staged ratings when assigning an
increased rating. In answering this question in the
affirmative, the Court held that staged ratings are
appropriate for an increased rating claim when the factual
findings show distinct time periods where the service-
connected disability exhibited symptoms that would warrant
different ratings.
In reaching its conclusion, the Court observed that when a
claim for an increased rating is granted, the effective date
assigned may be up to one year prior to the date that the
application for increase was received if it is factually
ascertainable that an increase in disability had occurred
within that timeframe. See 38 U.S.C.A. § 5110 (West 2002).
Accordingly, the relevant focus for adjudicating an increased
rating claim is on the evidence concerning the state of the
disability from the time period one year before the claim was
filed until VA makes a final decision on the claim.
As noted in the Introduction above, the veteran's most recent
claim for an increased disability rating was filed in May
2004. In this case, therefore, the relevant time period is
from May 2003 to the present. At that time the disability
rating was
10 percent, and it remains at 10 percent. The question to be
answered by the Board, then, is whether any different rating
should be assigned for any period from May 2003 to the
present.
In essence, the evidence of record, to include the two VA
examination reports n February 2001 and in may 2004 as well
as out[patient treatment reports, indicates that the
veteran's service-connected right knee disability was
manifested by complaints of pain, slight limitation of
motion, and x-ray evidence of arthritis.
Throughout the period, there were no clinical findings
sufficient to justify the assignment of a higher or lower
rating.
Thus, an increased disability rating for the veteran's right
knee condition is not
warranted for the period beginning one year before his most
recent claim, May
2003. And, accordingly, there will be no staged rating for
that time period.
Conclusion
The Board finds that a preponderance of the evidence is
against the veteran's claim of entitlement to an increased
disability rating for his service-connected right knee
disability, and that the veteran's right knee is
appropriately rated as 10 percent disabled under the criteria
of Diagnostic Code 5010. The benefit sought on appeal is
accordingly denied.
The matter of an extraschedular rating will be discussed
below.
2. Left ear hearing loss
Relevant law and regulations
The law and regulations generally pertaining to disability
ratings have been set out above and will not be repeated.
Hearing loss
Disability ratings for hearing loss are derived from a
mechanical application of the rating schedule to the numeric
designations resulting from audiometric testing, as set forth
under 38 C.F.R. § 4.85 (2006). See Lendenmann v. Principi, 3
Vet. App. 345 (1992).
The Rating Schedule provides a table for rating purposes
(Table VI) to determine a Roman numeral designation (I
through XI) for hearing impairment, established by a state-
licensed audiologist including a controlled speech
discrimination test (Maryland CNC), and based upon a
combination of the percent of speech discrimination and the
puretone threshold average which is the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by
four. See 38 C.F.R. § 4.85 (2006). Table VII is used to
determine the percentage evaluation by combining the Roman
numeral designations for hearing impairment of each ear. The
horizontal row represents the ear having the poorer hearing
and the vertical column represents the ear having the better
hearing. Id.
When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. See 38 C.F.R. §
4.86(a) (2006).
When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher. See 38 C.F.R. § 4.86(b)
(2006).
Analysis
Schedular rating
The veteran is seeking an increased disability rating for his
service-connected left ear hearing loss, which is currently
evaluated as noncompensably disabling under 38 C.F.R. § 4.85
(2006).
As explained in the law and regulations section above, the
resolution of this issue involves determining the level of
hearing acuity in the left ear.
An August 2004 VA audiology report revealed the following:
Puretone Air Conduction Thresholds (left ear)
1000 Hz
10 dB loss
2000 Hz
10 dB loss
3000 Hz
10 dB loss
4000 Hz
90 dB loss
The Puretone threshold average was 30 decibels in the left
ear. The speech discrimination score at that time was 100
percent in the left ear.
This yields a numerical designation of I in the left ear (0
to 41 percent average puretone decibel hearing loss, with
between 92 and 100 percent speech discrimination). Entering
the category designations into Table VII, a disability
percentage evaluation of 0 percent, or noncompensable, is for
assignment under Diagnostic Code 6100.
Applying the foregoing criteria to the facts in this case,
the Board finds that the veteran's left ear hearing loss was
properly assigned a noncompensable evaluation under
Diagnostic Code 6100.
The Board has considered the application of 38 C.F.R. § 4.86
(2006) [exceptional patterns of hearing impairment].
However, the veteran's left ear hearing loss does not meet
the criteria under that section. More specifically, the
veteran's hearing tests do not show a result of 30 dB or less
at 1000 Hz and 70dB or more at 2000 Hz, as would be required
for application of table VIa under 38 C.F.R. § 4.86(b). The
veteran also does meet the criteria for 38 C.F.R § 4.86(a).
Each of the four specified frequencies is not 55 dB or more
in the left ear. Therefore, the rating under 38 C.F.R. §
4.85 is the correct rating under the regulations for this
veteran.
In short, the medical evidence does not support a compensable
evaluation for the veteran's left ear hearing loss under any
pertinent criteria.
Extraschedular consideration
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). According to the regulation, an
extraschedular disability rating is warranted upon a finding
that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards. See 38 C.F.R.
§ 3.321(b)(1) (2006). An exceptional case is said to include
such factors as marked interference with employment or
frequent periods of hospitalization as to render
impracticable the application of the regular schedular
standards. See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board
cannot make a determination as to an extraschedular
evaluation in the first instance. See also VAOPGCPREC 6-96.
The RO included 38 C.F.R. § 3.321(b)(1) in the June 2005
Statement of the Case (SOC) and appears to have considered
the regulation in the veteran's case. Further, the veteran's
representative raised this issue in a May 9, 2007 Appellant's
Brief. Accordingly, the Board will address the possibility
of the assignment of extraschedular ratings for the increased
disability ratings at issue.
The Board has been unable to identify an exceptional or
unusual disability picture with respect to either service-
connected disability. The record does not show that the
veteran has required frequent hospitalizations for his left
ear hearing loss. Indeed, it does not appear from the record
that he has been hospitalized at all for that disability.
The veteran does have a history of arthroscopic surgery on
his right knee, in 1980, 1988 and 1993. However, there is no
indication in his medical records that he was hospitalized
for those surgical procedures, and in any event the last such
procedure was almost 15 years ago.
Additionally, there is not shown to be evidence of marked
interference with employment due to either disability. The
veteran states in a March 18, 2005 letter that he has been
prevented from obtaining a promotion in the military,
pursuing a civilian career in law enforcement and enjoying
sports because of his disabilities. However, there is no
indication that the veteran has not been able to obtain
employment, and there is nothing in the current evidence of
record to indicate that his disabilities cause any unusual
impairment.
In summary, there is no evidence in the medical records of an
exceptional or unusual clinical picture, or of any other
reason why an extraschedular rating should be assigned. The
Board therefore has determined that referral of the case for
extra-schedular consideration pursuant to 38 C.F.R.
3.321(b)(1) is not warranted.
ORDER
Entitlement to an increased disability rating for a service-
connected right knee condition is denied.
Entitlement to an increased disability rating for service-
connected left ear hearing loss is denied.
___________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs